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Bilka v. Commonwealth

Commonwealth Court of Pennsylvania

May 28, 2014

James D. Bilka, Appellant
v.
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing

Submitted: March 14, 2014.

Appealed from No. 11-40259. Common Pleas Court of the County of Butler. Yeager, J.

Carl A. Parise, Pittsburgh, for appellant.

Terrance M. Edwards, Assistant Counsel, Harrisburg, for appellee.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY SENIOR JUDGE COLINS.

OPINION

Page 1254

JAMES GARDNER COLINS, Senior Judge

James D. Bilka (Licensee) appeals from an order of the Court of Common Pleas of Butler County (trial court) denying his appeal from an eighteen-month suspension of his driving privilege for refusing to submit to chemical testing after his arrest for violating Section 3802 of the Vehicle Code, 75 Pa. C.S. § 3802 (relating to driving under the influence of alcohol or controlled substance (DUI)). At the time of his arrest, Licensee had been operating a bicycle. We affirm the order of the trial court.

By notice dated October 6, 2011, the Pennsylvania Department of Transportation (Department) notified Licensee that his driving privilege was being suspended for a period of eighteen months, effective November 10, 2011, as a consequence of his refusal to submit to a chemical test on September 15, 2011, under Section 1547(b)(1) of the Vehicle Code, 75 Pa. C.S. § 1547(b)(1) (related to chemical testing to determine amount of alcohol or controlled substance).[1] In order to support an eighteen-month

Page 1255

suspension of Licensee's operating privilege under 75 Pa. C.S. § 1547(b)(1)(ii), it was necessary for the Department to prove that Licensee (1) was arrested by an officer who had reasonable grounds to believe that Licensee was operating or was in actual physical control of the movement of a vehicle while he was in violation of 75 Pa. C.S. § 3802; (2) was asked to submit to a chemical test; (3) refused to do so; (4) was specifically warned that a refusal would result in the suspension of his operating or driving privilege and would result in his being subject to the penalties set forth in 75 Pa. C.S. § 3804(c) (relating to penalties) if he were later convicted of violating 75 Pa. C.S. § 3802(a)(1); and (5) was subject to one of the statutory enhancing provisions contained in 75 Pa. C.S. § 1547(b)(1)(ii). Sitoski v. Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12, 21-22 (Pa. Cmwlth. 2010). Section 1547 (b)(1)(ii) provides for enhancement of a suspension to eighteen months where the licensee has previously been sentenced for a DUI offense. 75 Pa. C.S. § 1547(b)(1)(ii)(B)(I). Because Licensee had been convicted and sentenced in 2007 for DUI (Supplemental Reproduced Record, Appendix A), he was subject to an eighteen-month suspension.

Licensee filed a statutory appeal from the eighteen-month suspension with the trial court, and de novo hearing was held on April 12, 2013. The sole witness at the hearing was Adams Township Police Department Officer Edward Lenz (Officer Lenz), who testified that while on patrol at a shopping plaza on September 15, 2011 at about 11:50 PM, he observed Licensee riding a bicycle through the parking lot. (Driver's License Suspension Hearing, Item 9, Certified Record (R.) at 6, Reproduced Record (R.R.) at 125a.) Officer Lenz stated that Licensee approached the intersection adjacent to the plaza parking lot, stopped at a red light there and continued through the intersection while the red light remained steady; he observed that Licensee's bicycle lacked the required headlight and side reflectors. ( Id.) Officer Lenz then activated his emergency lights in order to effectuate a stop, but Licensee waved him on. (R. at 6-7; R.R. at 125a-126a.) When Officer Lenz did not pass him, Licensee stopped his bicycle and upon request, provided his driver's license, an ignition interlock license. (R. at 7, R.R. at 126a.) Officer Lenz stated that he observed an odor of alcohol on Licensee's breath, and that Licensee's speech was slurred; he stated that when Licensee dismounted his bicycle and walked toward Officer Lenz's vehicle, he evidenced difficulty walking. ( Id.) After Licensee refused to perform field sobriety tests, he was placed under arrest for suspicion of DUI. (R. at 8, R.R. at 127a.) Officer Lenz read Licensee the Form DL-26 warnings, and Licensee refused to submit to a chemical test of his blood; he indicated to Officer Lenz that he was refusing because he did not believe that he could be arrested for DUI while riding a bicycle. (R. at 9, R.R. at 128a.)

Officer Lenz further testified that after he had placed Licensee under arrest, he telephoned the assistant district attorney on call to verify that Licensee could in fact be prosecuted for DUI while riding a bicycle; after receiving such verification, he asked Licensee two additional times whether he would submit to a chemical test, once at the scene of the ...


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